Defendant was charged with three counts of computer crime. ORS
164.377, (1) and was convicted of all three counts by a jury. He appeals, raising six
assignments of error. (2) In his first assignment of error, defendant challenges the trial
court's order denying his motion to suppress evidence of statements defendant made while
the police were searching his home. On November 1, 1993, the police searched
defendant's residence pursuant to a search warrant. No incriminating evidence was
discovered during the search. However, while the search warrant was being executed,
one of the police officers interviewed defendant. Defendant moved to suppress evidence
of statements that he made during that interview. Among other things, defendant sought
to controvert "the good faith, accuracy and truthfulness of the affiant * * *." ORS
133.693(1). The trial court denied the motion.

On appeal, defendant advances several grounds in support of his contention
that the evidence should have been suppressed. First, defendant challenges the "good
faith, accuracy and truthfulness of the affiant" whose statements led to the issuance of the
search warrant. See ORS 133.693(1) (in a proceeding on a motion to suppress evidence, a
party may contest the evidence presented to establish probable cause for a search).
Second, he argues that the facts in the affidavit supporting the warrant were insufficient
to support probable cause. Third, he contends that the warrant was overly broad. Finally,
he asserts that the warrant was improperly executed. Defendant does not argue that his
statements were not made voluntarily or that his Miranda rights were violated. Defendant
argues only that his statements were obtained during the execution of a warrant that was,
for the reasons outlined above, defective and, accordingly, the statements should have
been suppressed as the fruit of an illegal search.

Unlawful police conduct may require suppression of evidence later obtained
after a defendant's consent depending upon the nature of the connection between the
unlawful police conduct and the obtaining of the evidence sought to be suppressed. State
v. Rodriguez, 317 Or 27, 39, 854 P2d 399 (1993). Where there is no causal connection
between the illegal police conduct and the later-obtained evidence, suppression is not
required. Id. Further, a simple "but-for" causal connection does not require suppression;
suppression is required only when the police have "exploited" their prior unlawful
conduct in order to obtain evidence by otherwise lawful means. Id. at 39-40. For
example, as we explained in State v. Stanley, 139 Or App 526, 535, 912 P2d 948 (1996),
rev'd on other grounds 325 Or 239, 935 P2d 1202 (1997), "exploitation occurs when
unlawful police conduct reveals information that focuses police attention on the defendant
and prompts them either to seek the defendant's consent or to ask questions leading to
consent." The illegality must give the police more than the opportunity to seek consent.
It must also provide a reason for the police to ask for consent.

In this case, the allegedly unlawful police conduct involves how the search
warrant was obtained and executed. However, nothing about that conduct focused police
attention on defendant or prompted the police to seek his consent to be interviewed. Even
before the warrant was obtained, the police were interested in investigating and talking to
defendant. Defendant does not argue that, had the warrant not been obtained, the police
would not have sought to interview him. Moreover, the record does not indicate that
anything found during execution of the warrant caused the police to interview defendant
or caused the police to ask questions that they would not otherwise have asked. In fact,
the police asked to interview defendant at the same time they began to search his home,
which supports an inference that the police would have interviewed him regardless of any
results of the search. Nothing incriminating was discovered during the search that might
have led the police to ask questions of defendant that they would not otherwise have
asked. In this case, there is no causal connection, "but for" or otherwise, between the
allegedly unlawful police conduct and the obtaining of the evidence that defendant sought
to have suppressed. Accordingly, the trial court did not err in denying defendant's motion
to suppress.

Defendant's second and third assignments of error pertain to his demurrer.
Defendant demurred to count one of the indictment, arguing, among other things, that the
statute under which he was charged was unconstitutionally vague and that the indictment
was not definite and certain. In count one, defendant was charged with violating ORS
164.377(3), which provides:

"Any person who knowingly and without authorization alters,
damages or destroys any computer, computer system, computer network, or
any computer software, program, documentation or data contained in such
computer, computer system or computer network, commits computer
crime."

At the hearing on his demurrer, defendant attempted to call a witness, Kirth,
who defendant's lawyer stated was an expert in the operation of computer systems and
would testify about "issues raised by the statutory definitions." Defendant contended that
Kirth's testimony would have aided the court in understanding the meaning of several
words used in ORS 164.377(3)--namely "authorization" and "alters"--and accordingly,
would have been relevant to the court's ruling on his demurrer. The state objected,
arguing that a demurrer presents a purely legal issue and that consideration of facts in
determining a demurrer is improper. After hearing argument, the trial court sustained the
objection. Defendant argues that the trial court erred in not allowing this evidence.

Defendant's apparent goal in seeking to present this evidence was to provide
a factual background for the court's determination of the meaning of several statutory
terms. Facts that are relevant to determining the meaning of statutory language are
referred to as "legislative facts," as distinguished from the "adjudicative" or "historical"
facts of a particular case. Legislative facts "are those which have relevance to legal
reasoning and the lawmaking process, whether in the formulation of a legal principle or
ruling by a judge or court or in the enactment of a legislative body." Chartrand v. Coos
Bay Tavern, 298 Or 689, 693, 696 P2d 513 (1985) (quoting OEC 201(a) Commentary
(1981)). Legislative facts are used to determine what the law is or should be, not to arrive
at findings about the events relevant to the particular case. See id. As the Supreme Court
has explained, a court may take judicial notice of legislative facts in determining the
meaning of a term in the constitution or in analyzing the constitutionality of a law.
Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 558, 871 P2d 106
(1994). Although a court may take notice of legislative facts to aid its legal analysis, the
Supreme Court has definitively held that "an evidentiary hearing is [not] required when
analyzing an ambiguous term in the constitution or in a statute" and that "parties are not
entitled as a matter of right to present evidence to demonstrate such facts." Id. (emphasis
in original). Accordingly, here the trial court was not required to allow defendant the
opportunity to present this evidence. Under the circumstances here, we conclude that the
court did not abuse its discretion in sustaining the state's objection to defendant's
proposed evidence.

Defendant also challenges the trial court's ultimate overruling of his
demurrer. In count one of the indictment, defendant was charged as follows:

"That the above named defendant(s) on and between November 1,
1992 and November 1, 1993, in Washington County, Oregon, did
unlawfully, knowingly and without authorization alter a computer and
computer network consisting of Intel computers Mink and Brillig[.]"

In his demurrer to that count, defendant contended that the words "alter[]" and "without
authorization," ORS 164.377(3), are unconstitutionally vague and that the indictment was
not definite and certain.

A criminal statute is unconstitutionally vague when it "is stated in terms
from which those to whom it is addressed--potential defendants, prosecutors, courts, and
jurors--cannot discern what conduct the lawmaker did or did not mean to include in the
prohibition." State v. Blocker, 291 Or 255, 260, 630 P2d 824 (1981). See also State v.
Romig, 73 Or App 780, 788, 700 P2d 293 (1985) ("A criminal statute is
unconstitutionally vague when it is not sufficiently definite to inform those who are
subject to it what conduct on their part will render them liable to its sanctions."). The
prohibition against vague criminal statutes serves the dual purposes of "provid[ing]
notice, with a reasonable degree of certainty, of the conduct that is prohibited" and
"prevent[ing] a judge, jury, or other law enforcer from exercising uncontrolled discretion
in punishing defendants." State v. Chakerian, 325 Or 370, 382, 938 P2d 756 (1997)
(internal quotation marks omitted). If potential defendants and others can be reasonably
certain about what conduct is prohibited, the statute at issue is not vague; absolute
certainty is not required. State v. Plowman, 314 Or 157, 160, 838 P2d 558 (1992), cert
den 508 US 974 (1993).

Defendant contends that the term "alter" in ORS 164.377(3) is
unconstitutionally vague. He argues that "alter" is vague because its meaning overlaps
with that of the word "access," which the legislature used in ORS 164.377(2). He also
argues that, by making "alteration" of a computer a crime, the legislature has criminalized
"socially tolerable" conduct as well as "socially intolerable" conduct. Defendant further
argues that ORS 164.377(3) is vague because it does not require proof of harm. The state
responds that ORS 164.377(3) provides reasonable certainty about what conduct is
prohibited; that it was clear that defendant's conduct in particular was prohibited,
necessarily defeating a facial vagueness challenge; that proof of harm is not necessary to
save a law from vagueness; and that defendant's arguments confuse the concept of
vagueness with the concept of overbreadth.

Defendant also contends that the phrase "without authorization" in ORS
164.377(3) is unconstitutionally vague. According to defendant, because that phrase does
not identify what sort of authorization is required, or from what source it must come, it is
vague. Defendant further suggests that ORS 164.377(3), as written, requires that any
alteration be authorized and that such a construction is so broad as to allow ad hoc
enforcement. The state responds that only substantial certainty is required. The state
observes that ORS 164.377(3) criminalizes alteration of a computer only when a person
knows that he or she is without authorization. The state further argues that we should
read ORS 164.377(3) as a whole; as such, it is sufficiently clear that the source of the
authorization must be the person in control of the computer.

We agree with the state that many of defendant's arguments confuse the
concepts of vagueness and overbreadth. SeeState v. Robertson, 293 Or 402, 407-08, 649
P2d 569 (1982) (distinguishing concepts); Blocker, 291 Or at 260 (observing that
confusion between vagueness and overbreadth claims could be avoided if parties would
quote the constitutional clauses on which they base their claims). In that respect, this case
is like Romig, 73 Or App at 788, in which we stated:

"[D]efendant's arguments concerning vagueness deal with the
expansiveness of the statute rather than its lack of definiteness. Although
[the statute at issue] is complicated because of its many definitions and
cross-references to other crimes, it is not indefinite or vague."

Defendant's arguments that "access" and "alter" overlap and that the statute criminalizes
any unauthorized alteration are challenges to the breadth of the statute, not its lack of
definiteness, and, accordingly, are not well taken as part of a vagueness claim.

For the same reason, we reject defendant's argument that ORS 164.377(3) is
unconstitutionally vague because it reaches socially tolerable conduct as well as socially
intolerable conduct. We considered a similar argument in City of Portland v. Johnson, 59
Or App 647, 651 P2d 1384 (1982), rev den 294 Or 492 (1983), in which the crux of the
defendant's vagueness argument was that the statute prohibited activities that no
reasonable person would consider to be criminal. In Johnson, as in this case, the
defendant relied upon State v. Sanderson, 33 Or App 173, 575 P2d 1025 (1978), to
support his vagueness argument. In Sanderson, we said that the fundamental flaw of the
statute at issue was that it "g[ave] no basis to distinguish between anti-social conduct
which was intended to be prohibited and socially tolerable conduct which could not
reasonably have been intended to be subject to criminal sanction." 33 Or App at 176-77.
In Johnson, although we did not expressly state that such an analysis may not be
appropriate, we suggested, citing Robertson, that it might not. Johnson, 59 Or App at
650.

We now expressly repudiate the quoted portion of Sanderson. First, an
argument that a statute covers too much ground can never, standing alone, support a
vagueness challenge. As a matter of logic, the conclusion that a law is insufficiently
definite to provide guidance to its potential violators and enforcers simply does not follow
from the premise that the statute criminalizes too broad a category of conduct. Secondly,
such an argument cannot provide the basis for an overbreadth claim, because "[a]
legislature can make a law as 'broad' and inclusive as it chooses unless it reaches into
constitutionally protected ground." Blocker, 291 Or at 261. The sole limit on a statute's
breadth is constitutionality, not our second-guessing of what the legislature could or could
not have deemed "socially tolerable."

Defendant cites several cases in support of his argument that a statute must
require proof of harm to survive a vagueness challenge. None of those cases, however,
supports that proposition. To the extent that those cases suggest that proof of harm is
necessary to save a statute from unconstitutionality, two of the cases that defendant cites
do so in the context of overbreadth challenges based on Article I, section 8, of the Oregon
Constitution. State v. Ray, 302 Or 595, 599, 733 P2d 28 (1987); State v. Spencer, 289 Or
225, 229, 611 P2d 1147 (1980). Defendant does not argue that ORS 164.377(3) is
unconstitutionally overbroad because it reaches speech protected by Article I, section 8.
In the third case, State v. Blair, 287 Or 519, 524, 601 P2d 766 (1979), the Supreme Court
did mention harm in a vagueness discussion, but only in the context of suggesting what
kind of modification might make other, indefinite wording--in particular the forbidden
actions--in the statute at issue sufficiently definite.

In this case, a potential violator or enforcer can be reasonably certain what
conduct is prohibited by the phrase "alter[] * * * any computer [or] computer system." To
"alter" means "to cause to become different in some particular characteristic * * * without
changing into something else * * *." Webster's Third New Int'l Dictionary, 63
(unabridged ed 1993). In this case, defendant installed gate programs that allowed
external access to Intel computers. That conduct clearly changed a particular
characteristic of those computers, namely their imperviousness to access from outside the
company. "Alter" as used in ORS 164.377(3) is not unconstitutionally vague. SeeChakerian, 325 Or at 382 (a party who engages in conduct that is clearly proscribed
cannot complain that that statute is facially vague).

Similarly, "without authorization" in ORS 164.377(3) provides sufficiently
definite notice of the prohibited conduct. In this case, defendant himself acknowledged
that installing gate programs was against company policy. He did not argue that, despite
company policy, he had obtained permission to install a gate program. Confronted with
the phrase "without authorization," a potential violator of ORS 164.377(3) would be
reasonably certain that he or she would run afoul of that prohibition by doing something
to a computer in violation of the policy of the company that owned the computer without
having sought permission for an exception to the policy. The trial court did not err in
overruling defendant's demurrer on the ground of vagueness.

In his fourth assignment of error, defendant challenges the trial court's
denial of his motion for judgment of acquittal on counts two and three of the indictment.
In counts two and three, respectively, defendant was charged as follows:

"That the above named defendant(s) on and between August 1, 1993
and November 1, 1993, in Washington County, Oregon, did unlawfully and
knowingly access and use a computer and computer network for the
purpose of committing theft of the Intel SSD's password file[.]

"* * * * *

"That the above named defendant(s) on and between October 21,
1993 and October 25, 1993, in Washington County, Oregon, did unlawfully
and knowingly access and use a computer and computer system for the
purpose of committing theft of the Intel SSD individual user's passwords[.]"

At the close of the state's case, defendant moved for a judgment of acquittal
on counts two and three. Defendant argued that, because the state's theory was that he
acted with the purpose of committing theft, the state had to prove the elements of the theft
statute, ORS 164.015. According to defendant the state had failed, first, to put on
evidence that he had taken property and, second, to put on evidence that he had acted with
the intent or purpose to commit theft. The trial court denied defendant's motion for a
judgment of acquittal. Defendant assigns error to that denial.

ORS 164.377 includes three separately defined crimes:

"(2) Any person commits computer crime who knowingly accesses,
attempts to access or uses, or attempts to use, any computer, computer
system, computer network or any part thereof for the purpose of:

"(a) Devising or executing any scheme or artifice to defraud;

"(b) Obtaining money, property or services by means of false or
fraudulent pretenses, representations or promises; or

"(3) Any person who knowingly and without authorization alters,
damages or destroys any computer, computer system, computer network, or
any computer software, program, documentation or data contained in such
computer, computer system or computer network, commits computer crime.

"(4) Any person who knowingly and without authorization uses,
accesses or attempts to access any computer, computer system, computer
network, or any computer software, program, documentation or data
contained in such computer, computer system or computer network,
commits computer crime."

The parties do not dispute that the state proved that defendant "knowingly
accesse[d] * * * or use[d] * * * any computer, computer system, computer network or any
part thereof" as required by ORS 164.377(2)(c). The parties dispute only whether the
evidence was sufficient to establish that defendant did so "for the purpose of * * *
[c]ommitting theft, including, but not limited to, theft of proprietary information." ORS
164.377(2)(c). To resolve the issue, we construe that statutory wording by first
examining the text and context. PGE v. Bureau of Labor and Industries, 317 Or 606,
610-11, 859 P2d 1143 (1993). Context includes related statutes. Id. at 611.

ORS 164.377 does not define "theft." However, the legislature has defined
"theft" in a related statute, ORS 164.015. SeeState v. Thompson, 166 Or App 370, 377-78, 998 P2d 762, rev den 331 Or 192 (2000) (where construction of a statute defining a
criminal offense is at issue, pre-existing criminal code is a natural source for context; it is
proper to assume legislature was aware of pre-existing meanings of terms when it enacted
statutes using those terms); see alsoState v. Maney, 297 Or 620, 625-26 n 7, 688 P2d 63
(1984) (statutes in same chapter of criminal code are more likely to bear on court's
construction than are other statutes). ORS 164.015 provides, in part:

"A person commits theft when, with intent to deprive another of
property or to appropriate property to the person or to a third person, the
person:

"(1) Takes, appropriates, obtains or withholds such property from an
owner thereof[.]"

"Property" includes "any * * * thing of value." ORS 164.005(5). The parties do not
dispute that the password file and individual passwords have value, and there is evidence
in the record to support that proposition. The parties dispute, however, whether
defendant "t[ook], appropriate[d], obtain[ed] or withh[e]ld" the password file and
individual passwords.

Defendant argues that he could not have "taken, appropriated, obtained or
withheld" the password file and individual passwords because, even though he moved
them to another computer and took them in the sense that he now had them on his
computer, the file and passwords remained on Intel's computers after he ran the Crack
program. The individual users whose passwords defendant had obtained could still use
their passwords just as they had before. Intel continued to "have" everything it did before
defendant ran the Crack program and, consequently, defendant reasons, he cannot be said
to have "taken" anything away from Intel.

The state responds that, by copying the passwords, defendant stripped them
of their value. The state contends that, like proprietary manufacturing formulas,
passwords have value only so long as no one else knows what they are. Once defendant
had copied them, the passwords were useless for their only purpose, protecting access to
information in the SSD computers. The loss of exclusive possession of the passwords,
according to the state, is sufficient to constitute theft.

Under ORS 164.015, theft occurs, among other ways, when a person
"takes" the property of another. "Take" is a broad term with an extensive dictionary
entry. Webster's Third New Int'l Dictionary, 2329-31. Some of the dictionary definitions
undermine defendant's argument. The first definition of "take" is "to get into one's hands
or into one's possession, power, or control by force or stratagem * * *." Id. at 2329.
Another definition provides "to adopt or lay hold of for oneself or as one's own * * *."
Id. at 2330. Black's defines "take" to include "[t]o obtain possession or control * * *."
Black's Law Dictionary, 1466 (7th ed 1999). Those definitions indicate that the term
"take" might include more than just the transfer of exclusive possession that defendant
proposes. For example, "take" could include obtaining control of property, as defendant
did with respect to the passwords and password file by copying them.

Turning back to the text of the statute under which defendant was charged,
we note that the legislature contemplated that "theft" as used in ORS 164.377(2)(c) could
be exercised upon, among other things, "proprietary information." "Proprietary
information" includes "scientific, technical or commercial information * * * that is known
only to limited individuals within an organization * * *." ORS 164.377(1)(i). Proprietary
information, like the passwords and password files at issue here, is not susceptible to
exclusive possession; it is information that, by definition, can be known by more than one
person. Nevertheless, the legislature indicated that it could be subject to "theft" under
ORS 164.377(2)(c). We conclude that the state presented sufficient evidence to prove
that, by copying the passwords and password file, defendant took property of another,
namely Intel, and that his actions, therefore, were for the purpose of theft. The trial court
did not err in denying defendant's motion for judgment of acquittal on counts two and
three.

In his fifth assignment of error, defendant challenges several aspects of the
trial court's restitution order. Only one of defendant's arguments requires discussion. He
contends that $8,779.45 in attorney fees incurred by Intel should not have been included
in the restitution amount that he was required to pay. Under ORS 137.106(1), a trial court
may order a convicted criminal defendant to pay restitution of pecuniary damages to the
victim of the crime. Defendant argues that the trial court erred in refusing to hear
evidence about the amount of the attorney fees to be included in the restitution award,
specifically whether it was "reasonable and necessary" for Intel to retain outside counsel
to advise it when it could have more cheaply obtained the same advice from its in-house
counsel or from the District Attorney. The trial court ruled that defendant's evidence was
inadmissible because it was not relevant. We review relevance determinations for errors
of law. State v. Titus, 328 Or 475, 481, 982 P2d 1133 (1999).

"(1) When the same conduct or criminal episode violates two or
more statutory provisions and each provision requires proof of an element
that the others do not, there are as many separately punishable offenses as
there are separate statutory violations.

"* * * * *

"(3) When the same conduct or criminal episode violates only one
statutory provision and involves only one victim, but nevertheless involves
repeated violations of the same statutory provision against the same victim,
there are as many separately punishable offenses as there are violations,
except that each violation, to be separately punishable under this
subsection, must be separated from other such violations by a sufficient
pause in the defendant's criminal conduct to afford the defendant an
opportunity to renounce the criminal intent. * * * " (Emphasis added.)

Defendant's convictions for counts 2 and 3 do not merge, because the acts that formed the
basis for each violation were separated by a "sufficient pause" in defendant's criminal
conduct to afford him the opportunity to renounce criminal intent. As to count 2, the
relevant acts were copying the SSD password file onto the Intel computer Wyeth and
running the Crack program on it. As to count 3, the relevant act was running the Crack
program again on the password file, this time using a faster computer, Snoopy.
Defendant himself testified that he expected to gain different, "most interesting" figures
by running the Crack program again on Snoopy. The two instances of running the Crack
program were separated by several weeks. Several weeks certainly provided a "sufficient
pause" to allow defendant to renounce his criminal intent. The trial court did not err in
refusing to merge the convictions.

Restitution order reversed and remanded for reconsideration; otherwise
affirmed.

1. The text of ORS 164.377 is set out later in the opinion. ___ Or App at ___
(slip op at 16-17).

2. We note that defendant has not fully complied with the requirement of the
Oregon Rules of Appellate Procedure that an appellant set out standards of review. When
defendant filed his brief, ORAP 5.45(6) (1998) provided, in part:

"At the beginning of each argument the appellant shall identify the
applicable standard of review, followed by citation to the statute, case law
or other legal authority for that standard of review." (Footnote omitted.)

Since defendant filed his brief, the Oregon Rules of Appellate Procedure have been
amended. A similar provision is now found at ORAP 5.45(5), which provides:

"Under the subheading 'Standard of Review,' each assignment of
error shall identify the applicable standard or standards of review, supported
by citation to the statute, case law, or other legal authority for each standard
of review." (Footnote omitted.)

We emphasize that this provision of the appellate rules is not a mere technicality or
formality. This requirement serves the purpose of causing the parties to frame their
arguments appropriately to the types of rulings being challenged. It also helps to identify
any differences that the parties may have regarding the proper scope of review, thereby
allowing the court to explore the issue further at oral argument.

3. The state argues alternatively that defendant's statements should not be
suppressed, because defendant waived any objection to the search at trial when he himself
introduced evidence that the search had not produced any incriminating evidence and
when he either repeated statements he had made during the search or acknowledged that
he had made such statements. In view of our conclusion that the statements were not
obtained by exploitation of the search, we do not address this alternative argument.

4. A challenge to the definiteness or certainty of an indictment is properly
raised under ORS 135.630(2). A challenge to the definiteness or certainty of a charging
instrument other than an indictment may be raised under ORS 135.630(6). State v.
Wright, 167 Or App 297, 299 n 1, 999 P2d 1220, adhered to on recons 169 Or App 78, 7
P3d 738 (2000); State v. Morgan, 151 Or App 750, 753 n 4, 951 P2d 187 (1997).

6. In the event that the trial court determines that the fees incurred were
reasonable and necessary, it will be necessary for the court to consider whether, under the
particular circumstances of this case, the fees constitute "pecuniary damages" under ORS
137.106(1). "Pecuniary damages" is defined as "all special damages, but not general
damages, which a person could recover against the defendant in a civil action arising out
of the facts or events constituting the defendant's criminal activities * * *." ORS
137.103(2).